The Unitary Executive and the Scope of Executive Power

In the Justice Department’s Office of Legal Counsel (OLC) in
the 1980s, “unitary” meant unitary, as in e
pluribus unum. When Deputy Assistant Attorney General Samuel Alito and his
colleagues in OLC used the phrase “unitary executive,” they used “unitary” to
convey two kinds of oneness. The executive is headed by a single person, not a
collegial body, and that single person is the ultimate policy maker, with all
others subordinate to him. In 2000, then-Judge Alito participated in a
discussion of executive power, and noted his endorsement of the unitary
executive theory that he had espoused while at OLC.1

Over the next few years, “unitary” in “unitary executive”
took on an added meaning: allowed to depart from the law, including the law of
war, in some circumstances.2 When Judge Alito came before
the Senate Judiciary Committee as a nominee to the Supreme Court, he was asked
whether his endorsement of the unitary executive meant that he agreed with
aggressive claims of executive authority to disregard legal constraints.3

Judge Alito sought to “explain what I understand the idea of
the unitary Executive to be” in the face of “some misunderstanding.”4 Seated at the
witness table, he went on, “I think it’s important to draw a distinction
between two very different ideas. One is the scope of Executive
power . . . . [W]e might think of that as how big is this
table, the extent of the Executive power.”5 That was
distinct from a second question, “[W]hen you have a power that is within the
prerogative of the Executive, who controls [it]?”6 In his earlier
discussions of the unitary executive, he had been talking about the second
question. “[T]he concept of [the] unitary Executive doesn’t have to do with the
scope of Executive power,” Justice Alito clarified. “It has to do with who
within the Executive branch controls the exercise of Executive power, and the
theory is the Constitution says the Executive power is conferred on the
President.”7

Justice Alito’s votes and opinions show that he does not take
a maximalist view of the size of the table. He has often joined in rejecting
claims of executive power. But he continues to subscribe to the principle that
it is the President’s table. That is itself a principle of great importance.

Justice Alito has joined a number of opinions, for the Court
and in dissent, that reject claims of presidential and executive power. In Medellínv.Texas,8 he joined the
Chief Justice’s opinion for the Court denying a major assertion of executive
power. The Chief Justice concluded that although the United States had an
obligation under international law to give Medellín review and reconsideration
of his claim under the Vienna Convention on Consular Relations, the President’s
directive that Texas do so was ineffective as a matter of U.S. domestic law. In
Zivotofskyv.Kerry (Zivotofsky II),9 Justice Alito
joined two opinions that denied claims of executive autonomy from Congress as
to foreign affairs. At issue in that case was a statute requiring that certain
official documents issued by the State Department refer to Jerusalem, Israel.
The long-standing position of the executive branch was that the status of Jerusalem
remains to be determined. Relying on the President’s power concerning
recognition of governments and sovereignty, the Solicitor General argued that
the statute was unconstitutional. The Court agreed. Chief Justice Roberts and
Justice Scalia both wrote dissenting opinions that Justice Alito joined.10 In NLRB v.Noel Canning,11 he joined Justice Scalia’s
concurring opinion, which maintains that the President’s power to make recess
appointments is much more constrained than the Court’s opinion says it is.12

He has also refused to endorse arguments that would have the
courts give substantial deference to the executive in legal interpretation. In Hamdanv. Rumsfeld,13 in which the Court
concluded that the system of military commissions created by the President was
unlawful, Justice Alito joined only portions of Justice Thomas’s dissenting
opinion.14 Two of the
three parts that Justice Alito did not join rest on strong deference to the
President’s judgments. Justice Alito declined to join Section I, which called
for “a heavy measure of deference” to “the President’s decision to try Hamdan
before a military commission.”15 He similarly refused to
join Section III-B-III, stating that the courts should defer to the President
in interpreting the Geneva Conventions.16

Justice Alito’s skepticism about deference to the executive
is not limited to unusual developments like military commissions. In Perezv.Mortgage Bankers Ass’n,17 he announced
his readiness to reconsider the quotidian but quite important doctrine
according to which executive agencies are given exceptionally strong deference
when they interpret their own regulations.18

Justice Alito’s views
cannot be attributed to partisan considerations. The Administration to which
Justice Thomas would have deferred in Hamdan
was that of President George W. Bush. Medellín
involved a claim of presidential power made and defended by that same
Administration. The statute at issue in Zivotofsky
II had been signed by that same President, with a statement that, if the
statute were to be interpreted as mandatory for the President, it would be
unconstitutional.19 Justice Scalia’s concurring
opinion in Noel Canning, which
Justice Alito joined, departed from the long-standing view held by the executive
branch under both parties. Deference to agency interpretation of regulations is
routinely invoked by administrations of both parties in support of interpretations
adopted by administrations of both parties.

Although Justice Alito does not take a particularly expansive
view of executive power, he does continue to believe that the President
controls that power. He joined the Chief Justice’s opinion for a five-Justice
majority in Free Enterprise Fundv.Public
Co. Accounting Oversight Board,20 which found
unconstitutional the statutory provision limiting the SEC’s authority to remove
directors of the Public Company Accounting Oversight Board. Assuming without
deciding that the President’s authority to remove Commissioners of the SEC is
also limited, the Court concluded that the “dual for-cause limitations” on
removal “contravene[d] the Constitution’s separation of powers.”21 The Chief
Justice’s discussion of the removal restrictions begins by quoting the Vesting
Clause of Article II and then James Madison’s statement in the First Congress
that “if any power whatsoever is in its nature Executive, it is the power of
appointing, overseeing, and controlling those who execute the laws.”22 The opinion
maintains that the President must be able to hold subordinate executive
officials accountable.23 Although the Court in Free Enterprise Fund was careful not to
disturb precedents permitting Congress to impose some limits on presidential
removal authority, its opinion contemplates a President who supervises the
entire executive.24

Free Enterprise Fund
gives important but still limited information about several Justices’ views
concerning presidential control of executive functions. Chief Justice Roberts
wrote, and three more Justices now on the Court joined, the opinion just
discussed. That opinion endorses substantial presidential authority without
conclusively affirming complete presidential control of executive functions.25 Justice
Breyer in dissent, joined by two more current members of the Court, strongly
indicated that he thinks substantial limits on presidential control are
sometimes constitutional.26

Some doubt remains as to the meaning of the Court’s opinion
in Free Enterprise Fund for most of
the Justices who joined it. Justice Alito substantially lessened any doubts
about his continuing embrace of the principle of the unitary executive in his
concurring opinion in Department of
Transportation v. Association of
American Railroads.27 There, the Association of
American Railroads challenged regulatory decisions made by Amtrak. The statute
creating Amtrak characterizes it as a private corporation and not part of the
government.28 The D.C.
Circuit concluded that under the statute Amtrak is a private party and may not
exercise governmental power. The Supreme Court found that, despite the statute,
Amtrak is part of the government for these purposes, and accordingly vacated
and remanded.29

A number of additional
constitutional issues were still open on remand, and Justice Alito addressed
several of them. One involved the arbitration process Congress had provided to
resolve disputes between Amtrak and regulated parties, and the arbitrator who
would make decisions under the statute. Explaining that such technical issues
can hide real questions about power, accountability, and liberty, Justice Alito
said that “[i]f the arbitrator can be a private person, this law is
unconstitutional.”30 His conclusion rested on
the Vesting Clauses of Articles I and II. Congress, he explained, may not
delegate the legislative power vested in it.31 When statutes
enable executive agencies to act with the force and effect of law, strictly
speaking the agencies exercise executive and not legislative power.32 “When it
comes to private entities, however, there is not even a fig leaf of
constitutional justification.”33 Private entities do not
have the legislative power granted by Article I. “Nor are they vested with the
‘executive Power,’ Art. II, § 1, cl. 1, which belongs to the President.”34 Although he
was discussing the line between the government and private parties, Justice
Alito did not say that executive power is government power. He emphasized that
it belongs to the President.

Another feature of the statute’s arbitration mechanism
troubled Justice Alito. As he read the statute, the arbitrator would decide
without further supervision from any presidential appointee.35 Under the
Court’s Appointments Clause cases, only principal officers—those appointed by
the President with the advice and consent of the Senate—may stand in that
position.36 Inferior
officers must be supervised by presidential appointees.37 Arbitrators
under the act, however, are not appointed by the President. All this may seem
technical and only slightly connected to the unitary executive, but Justice
Alito saw a connection. The Appointments Clause “ensures that those who
exercise the power of the United States are accountable to the President, who
himself is accountable to the people.”38

Justice Alito also thought that another seemingly technical
Appointments Clause issue was related to presidential control of the executive.
Under the Amtrak statute, eight of nine members of the Amtrak Board of
Directors are presidential appointees. The Secretary of Transportation is a
member ex officio, and seven members are appointed specifically to the Amtrak
board by the President with the advice and consent of the Senate. The ninth
member, the President of Amtrak, is chosen by the other eight board members.39 The President
of Amtrak thus cannot be a principal officer and is at most an inferior
officer. But the President participates in the Board’s decisions, the Board is
a multi-member agency head, and agency heads must be principal and not inferior
officers.40

Again, so much technicality, but technicality in the service
of presidential primacy. In Justice Alito’s word, “accountability demands that
principal officers be appointed by the President . . . .
The President, after all, must have ‘the general administrative control of
those executing the laws,’ and this principle applies with special force to
those who can ‘exercis[e] significant authority’ without direct supervision.”41

And that is the gospel according to OLC.

John
Harrison is James Madison Distinguished Professor of Law and Edward F. Howrey
Research Professor, University of Virginia. He previously served as Deputy
Assistant Attorney General, Office of Legal Counsel, United States Department
of Justice, 1991-1993.

Id. at 1238. The Appointments Clause provides that the President shall nominate, and with the advi…

37

Ass’n Am. R.R., 135 S. Ct. at 1238.

38

Id.

39

Id. at 1239.

40

Id.

41

Id. (internal citations omitted).

1

“When I was in OLC, however, we were known, actually, to read the text of the Constitution, in particular Article Two, as well as The Federalist Papers. We were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the President. And I thought then, and I still think, that this theory best captures the meaning of the Constitution’s text and structure.” Administrative Law & Regulation: Presidential Oversight and the Administrative State, 2 Engage 12 (2001) (participating in panel discussion). In that presentation, Judge Alito preached “the gospel according to OLC,” maintaining that “the President has the power and the duty to supervise the way in which subordinate Executive Branch officials exercise the President’s power of carrying federal law into execution,” and pointed out that “[t]he Constitutional Convention rejected the concept of a plural executive in favor of a unitary executive.” Id. When Judge Alito was nominated to the Supreme Court, his response to the Senate Judiciary Committee’s questionnaire listed that presentation and attached a transcript. Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 72 (2006).

E.g., Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 351 (2006) (statement of Sen. Kennedy).

Id. at 678 (Thomas, J., joined by Justice Scalia in full and Justice Alito except as to parts I, II-C-1, and III-B-2).

15

Id. at 680.

16

Id. at 718-19 (stating that the Court’s “duty to defer to the President’s understanding” is heightened by the fact that the President is acting as Commander in Chief and making a judgment about “the nature and character of an armed conflict”).

17

135 S. Ct. 1199 (2015).

18

A standard authority for the principle that agency interpretations of agency regulations deserve especially strong deference is Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). In his opinion concurring in part and concurring in the judgment in Mortgage Bankers, Justice Alito noted the D.C. Circuit’s “understandable concern about the aggrandizement of the power of administrative agencies” that results from the confluence of three factors, including deference under Seminole Rock. 135 S. Ct. at 1210. He concluded, “I await a case in which the validity of Seminole Rock may be explored through full briefing and argument.” Id. at 1210-11.

19

135 S. Ct. at 2082.

20

130 S. Ct. 3138 (2010).

21

Id. at 492.

22

Id. (internal citation omitted).

23

“The President is stripped of the power our precedents have preserved, and his ability to execute the laws—by holding his subordinates accountable for their conduct—is impaired.” Id. at 496.

24

Seeid. at 483 (discussing cases that upheld removal restrictions).

25

In addition to Justice Alito, Justices Kennedy and Thomas joined the Court’s opinion, as did Justice Scalia. Justice Scalia asserted that the President must control executive decisions in his dissent in Morrison v. Olson. See 487 U.S. 654, 697 (1989) (Scalia, J., dissenting). While Chair of the Equal Employment Opportunity Commission, now-Justice Thomas gave a speech in which he criticized the Court’s opinion in Morrison and praised Justice Scalia’s dissent. Confirmation Hearings on the Nomination of Judge Clarence Thomas To Be Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary Pt. 1, 102d Cong. 350-51 (1991) (question of Sen. Leahy).

26

According to Justice Breyer, Congress has substantial but limited authority to free executive branch officials from presidential removal: “[D]epending on, say, the nature of the office, its function, or its subject matter, Congress sometimes may, consistent with the Constitution, limit the President’s authority to remove an officer from his post.” 561 U.S. at 516 (Breyer, J., dissenting). Justices Stevens, Ginsburg, and Sotomayor joined that opinion.

27

135 S. Ct. 1225 (2015).

28

49 U.S.C. § 24301(a)(3) (providing that Amtrak “is not a department, agency, or instrumentality of the United States Government”).

29

135 S. Ct. 1233-34.

30

Id. at 1237.

31

Id.

32

Id.

33

Id.

34

Id.

35

Ass’n Am. R.R., 135 S. Ct. at 1238-39.

36

Id. at 1238. The Appointments Clause provides that the President shall nominate, and with the advice and consent of the Senate appoint, all officers of the United States, but that Congress may vest the appointment of inferior officers in the President alone, the courts of law, or the heads of departments. U.S. Const. art. II, § 2, para. 2. Officers who are not inferior officers are often referred to as principal officers.